EEOC Determines Criminal Background Checks Have an Adverse Impact on Minorities
If you are one of the many Californians currently seeking employment, you have probably been met with a request for a criminal background check. In light of recent terrorist events and heightened concern for security, an increasing number of employers are conducting background checks. A criminal background check usually involves prior arrest and conviction records, which brings the possibility of discrimination in the hiring process.
Recently, Roberto J. Arroyo brought a class action against his employer for violation of Title VII of the Civil Rights Act of 1964. Arroyo alleges that his employer discriminated against Latino and African American individuals by denying or terminating employment based on their criminal backgrounds regardless of whether the employees’ prior conduct was job related. There are both federal and state laws that limit the ability of employers to make criminal inquiries. Title VII prohibits an employer from using an employment practice that has an adverse impact on members of a particular class. The Equal Employment Opportunity Commission (EEOC) has determined that the use of arrest records in a pre-employment setting can only be justified where the applicant’s arrest involved conduct that is “job related.” Conviction records can only be used where there is a “justifying business necessity.” This requires an employer to consider the type of offense, the time that passed since the conviction, and the nature of the job. The EEOC believes this is a necessary measure as “an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records has an adverse impact on Blacks and Hispanics in light of statistics showing that they are convicted at a rate disproportionately greater than their representation in the population.”
In addition to Title VII, California had adopted its own legislation to protect against discrimination based on criminal background checks. Although arrests are public record, they cannot be used by employers unless the arrest resulted in a conviction or the applicant is awaiting trial. (California Labor Code, Section 432.7) There is an exception for health care providers who may ask about any sex related arrests. Additionally, when the job involves access to medication, an employer may ask about drug related arrests. Unlike arrest records, criminal convictions are not public record. Employers may not inquire into juvenile convictions or marijuana convictions that are more than two years old. The are exceptions for certain types of employers, including public utilities, law enforcement, security guard firm, and child care facilities. (California Penal Code, Sections 11105 and 13300).
If you are seeking employment and worried about past arrests or a criminal record, there are steps you can take to prepare for a background check. Go to the county where the court hearing took place and request to see a copy of the record. Review the document carefully and make sure the information is accurate and up to date. If you have any major driving infractions, such as a DUI or DWI, it is also a good idea to request your driving record from the Department of Motor Vehicles. Again, review the record for completeness and correct any inaccuracies. Once your interview with a potential employer is complete, make sure you receive a copy of any background reports concerning you.
If you believe the employer violated the EEOC or other employment law, contact a knowledgeable California labor law attorney
as you may have a claim for damages.
Photo Credit: Shutterstock/Roman Samborskyi